1. Heard Mr. Salunke, learned counsel for the Appellants-Claimants and Ms. Mittal, learned counsel for Respondent No. 2-Insurance Company.

2. Mr. Govind Awasekar, who is driver of fiat car died in vehicular accident which took place on 27.05.1994 near New Vijay Hotel at Village Sardwadi at Pune-Ahmednagar Highway.

3. The another vehicle involved was a truck bearing No. MH 23/710 owned by the opponent No. 1, it was insured with the opponent No. 2 and it was driven by the opponent No. 3. It is matter of record that the FIR came to be registered against the deceased for whom the compensation is being asked for. The FIR is registered at Shirur Police Station. A copy of the FIR is there in record and proceedings. However, it is not legible. We can only read that the deceased Govind was shown as accused person. There is no question of charge-sheeting him.

4. He was driver by profession and earning Rs. 1500/- per month. The compensation was asked for by the Claimants who are widow and minor son. It was filed before the Tribunal at Pune. The Opponent No. 1 is owner of the Truck. Whereas Opponent No. 3 was driver. Admittedly, from the opponent side no one entered into the witness box. Admittedly the wife of the deceased who gave evidence is not an eyewitness. The owner and the Insurance Company have filed Written Statement and they have denied allegations that the truck driver was rash and negligent. As against this, they have pleaded that it is deceased only who was rash and negligent and in fact he was responsible for his own death. It is further pleaded that at the material time, the truck was stationary truck and in fact fiat car gave dash to the said truck.

5. Learned Member on appreciation of the evidence came to conclusion that it is not the truck driver who was rash and negligent, but it was deceased himself who was rash and negligent. For these observations, learned Member was pleased to dismiss the Claim petition as per the award dated 30.04.2003. This correctness is challenged on behalf of the Claimants.

6. With the assistance of learned counsel, I have gone through the oral evidence of wife of the deceased and documentary evidence which consists of F.I.R., Post-mortem report and spot panchnama.

7. When the impugned judgment is perused, I do not find any reference of the spot panchnama. In fact no person was examined on the point of witnessing the incident. Certainly, the spot panchnama could throw some light on the manner in which the accident occurred.

8. Learned counsel for the Claimants relied upon the observations in case of Shammi Sharma and Ors. Vs. Randhir Singh and Ors. in Civil Appeal arising out of SLP (C) No. 21699 of 2018, decided on 31.01.2025. It is on the point of precaution to be taken by the driver of a stationary vehicle and the provisions of Section 122 of the Motor Vehicles Act and Rule Nos. 109 and 105 (2) of the Motor Vehicles Rules are referred. I have also gone through the said observations. It seems that the accident took place at nighttime. Considering the time of the accident, the use of parking lights has got some significance. But in this case, there was no oral evidence given on behalf of either Insurance Company or driver of the truck. It could have certainly helped the Court in order to arrive at conclusion about the manner in which the accident occurred.

9. When I have read the spot panchnama with the assistance of both the sides, there is one factor which is in favour of the Appellants-Claimants. Admittedly, this is not the case wherein the driver of the truck can be held 100% responsible. Because there is already FIR against the driver of the fiat car. It is no doubt true that the Tribunal can consider the evidence independently of the Police paper but admittedly, except the widow, there is no other evidence to appreciate about manner of the accident. In such scenario, the Court can certainly look into contents of the spot panchnama.

10. According to the Claimants, the deceased while driving fiat car tried to overtake the vehicle in front of him and while doing that he collided with the stationary truck. It is submitted on behalf of Insurance Company that considering this evidence, the findings given by the Tribunal that the deceased was 100% responsible has to be confirmed. However, when I have read the contents of the spot panchnama, there is a reason to believe that the accident has not taken place entirely in manner deposed by wife of the deceased, because spot panchnama records that break marks were noticed behind the truck. For ready reference, the relevant portion is reproduced below:

                   

11. If this portion is considered, the question arises how break marks were noticed behind the truck. This may be possible due to sudden application of the brakes by the deceased driving the fiat car. But, it is not the case of the Claimants that fiat car came behind the truck. There is another possibility that the truck might have applied the breaks suddenly. I find the second possibility more probable. If it is so, then the truck driver must have applied the breaks considering the eventuality that fiat car has come from the opposite direction.

12. In view of that there is reason to believe that the driver of fiat car is not entirely responsible for the accident. This Court finds some element of negligence on the part of truck driver. This Court finds it is case of the negligence contributed by the fiat driver as well as truck driver. It is very well true that there is no settled law as to how they can be apportioned for the negligence, but when the contents of the spot panchnama are perused, this Court can conclude that the fiat car driver was responsible for 75% and truck driver is responsible for 25%.

13. For the above discussion, the learned Member was not justified in dismissing the Claim petition by holding that fiat car driver was solely responsible for the accident.

14. For the above discussion, this finding needs to be set aside.

15. On the point of compensation, it is submitted that the deceased was earning Rs. 1500/- per month and the tribunal in the award has considered the income of Rs. 1000/- per month. Learned counsel for the Appellants relied upon the observations in case of Chandra @ Chanda @ Chandraram and Anr. Vs. Mukesh Kumar Yadav and Ors.(2021 (6) Bom. C.R. 112). My attention is invited to the observations in para no. 10. The Hon’ble Supreme Court has considered Rs. 6000/- as monthly income of the driver of the light motor vehicle. In that case the accident occurred on 08.11.2004. According to the learned advocate for the Insurance Company, this cannot be applied because the accident in the present case has taken place on 27.05.1994.

16. This Court feels that the monthly income of the deceased deposed by wife of the deceased can be considered as monthly income of the deceased and on that basis further compensation can be arrived at. The age of the deceased was 24 years. Certainly, future prospect can be considered and he must have incurred some expenses on himself. Considering the age 24 years, the Claimants who are wife and minor son are certainly entitled for consortium @ Rs. 48,000/- per person.

17. In view of that the compensation which can be arrived at is as follows:-